Original scientific paper
https://doi.org/10.21857/ypn4oc8l39
THE EFFECT OF THE CRAFT’S SINKING ON THE CONTRACTUAL RELATIONSHIP OF THE PARTIES TO THE CONTRACT OF BERTH AND CUSTODY OF A PLEASURE CRAFT
Adriana Vincenca Padovan
orcid.org/0000-0003-0013-1820
; Jadranski zavod HAZU, Zagreb, Hrvatska
Vesna Skorupan Wolff
orcid.org/0000-0002-1591-7247
; Jadranski zavod HAZU, Zagreb, Hrvatska
Abstract
The cases of sinking of pleasure craft whilst on berth in a marina are not often, but
statistics show they do occasionally occur, and when this happens, the chances are that
the incident will eventually lead to a dispute between the marina operator and the owner
of the vessel as to liability for damage or loss caused by such sinking. Besides the obvious
damage to the vessel itself, such incident in a marina will inevitably cause expenses for
the lifting, removal or recovery of the sunken vessel and potentially even damage to the
infrastructure or equipment of the marina, depending on the circumstances of the individual
case. From a legal point of view, such incident will have an effect on the contract of
berth between the marina operator and the owner, operator or the user of the vessel. The
liability arising therefrom will depend on the circumstances of each case, in particular
of the cause of such sinking, and it shall be interpreted in accordance with the contract
of berth and the applicable national law. The causes of sinking can be various, from the
extreme weather conditions to unseaworthiness of the vessel, the inadequacy of the berthing
or mooring equipment or infrastructure, flooding, fire, lack of maintenance, a collision within the marina or else. In each individual case, the predominant cause of sinking
will have to be determined and depending thereupon the liability of one of the parties to
the contract of berth will be established, unless it is proven that the damage was caused
by an act of God. The question is also, what the destiny of the contract of berth after such
sinking will be, i.e. whether the contract will remain in force or it will automatically end
or whether any of the parties will be entitled to rescind or cancel the contract. Such legal
consequences will also vary depending on the cause of the sinking and the terms of the
contract.
Whilst analysing the effect of the sinking on the berthing contract, the authors look
into the incidence of such accidents in the Croatian marinas, the marina operators’
common practices and protocols related thereto and generally the preventive measures
that the marina operators usually implement in the interest of the safety of navigation.
The analysis includes the issue of potential liabilities of the parties to the contract of
berth, and the destiny of the contract following a sinking accident. The paper discusses
the various legal consequences of the sinking in the context of the contract of berth in
a marina, considering in particular its specific nature and contents as an innominate
atypical contract.
Keywords
contract of berth; marina; sinking; pleasure craft; marina operator’s liability
Hrčak ID:
195411
URI
Publication date:
28.2.2018.
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